BARIMAH v. COMMISSIONER

The opinion of the court was delivered by: DAVID TRAGER, District Judge

ORDER

On March 13, 2003, this court issued an order granting
plaintiff disability insurance benefits as of March 1, 2000, and
remanding to the defendant Commissioner of Social Security
("Commissioner") for a determination of whether the evidence
supports an earlier onset date. The Commissioner then brought
this motion for reconsideration, alleging the March 13, 2003
opinion overlooked controlling law. Specifically, the
Commissioner argues the court's subject matter jurisdiction under
the Social Security Act (the "Act") is limited to the time frame
of plaintiff's application, and therefore the court cannot
declare plaintiff to be disabled as of March 1, 2000.

Procedural History

On November 16, 1998, plaintiff Raymond T. Barimah ("Barimah"),
then 58 years old, applied for Social Security Disability
Insurance Benefits ("SSDI"), alleging a disability beginning July
2, 1997. (Tr. 122-126).*fn1 On the Disability Report that
accompanied Barimah's application he listed, "failed retina
detachment surgery, poor vision in both eyes, high blood
pressure." (Tr. 122). Barimah's claim was denied initially (Tr.
106-108), and was again denied on reconsideration. (Tr. 110-111).
Barimah then requested a hearing before an Administrative Law
Judge ("ALJ"). (Tr. 112-113). On August 25, 1999, a hearing was
held at which Barimah was represented by counsel. On September 1,
1999, plaintiff's counsel contacted the ALJ to request that the
record be kept open in anticipation of another report from Dr.
Podhorzer. (Tr. 271-72).

On September 2, 1999, without waiting for the medical report,
the ALJ issued a decision denying benefits. (Tr. 24-32). On
August 29, 2001, after considering additional evidence presented
by Barimah, the Appeals Council denied his request for review.
Barimah then commenced this action. The Commissioner moved for
judgment on the pleadings to affirm her decision that plaintiff
was not disabled, and plaintiff cross-moved, requesting that the
Commissioner's decision be reversed and remanded solely for
calculation of benefits or alternatively, be remanded for further
administrative proceedings.

Oral argument on the motion and cross-motion was held on
January 24, 2003. At oral argument, the parties were encouraged
to settle, as it was clear that Barimah was disabled prior to
December 31, 2000, the last date on which he met the insured
status requirements of the Act. The plaintiff filed a
supplemental letter on February 24, 2003, and the Commissioner
filed a supplemental letter in response on February 25, 2003. In
the Commissioner's February 25 letter, the Commissioner stated it
"could not agree" to a remand because "the only issue before the
Court is whether substantial evidence supports the Commissioner's
decision that from July 2, 1997, the alleged onset date, through
September 2, 1999, the date of the ALJ's hearing decision (the
`relevant period')," Barimah was not disabled. The letter further
stated the Commissioner had "never considered the issue of
whether plaintiff met the criteria for legal blindness as of
March 1, 2000."

On March 13, 2003, this court issued an order granting
plaintiff disability insurance benefits as of March 1, 2000, and
remanding to the defendant Commissioner of Social Security
("Commissioner") for a determination of whether the evidence
supports an earlier onset date. The March 13 opinion explained
that although the medical evidence submitted to the Appeals
Council "reflects the results of tests performed after the ALJ's
decision, the Second Circuit has repeatedly held that diagnoses
post-dating the relevant period may reveal that a claimant `had
an impairment substantially more severe than was previously
diagnosed.'" (quoting Lisa v. Secretary of the Dep't of Health &
Human Servs., 940 F.2d 40, 44 (2d Cir. 1991)).

The Commissioner brought this motion for reconsideration on
March 26, 2003.

Relevant Medical History

Barimah first experienced problems with his left eye in 1994
and had his first cataract surgery in June 1995. (Tr. 58). He
fully recovered in about five months and returned to work in
February 1996. (Tr. 59-60). According to Barimah, he stopped
working in August 1997 because he was laid off and also because
he started to feel dizzy and did not see well. (Tr. 59-60). At
that time, he began to collect unemployment benefits. (Tr. 62).
In November 1997, he traveled to Ghana and stayed there for about
one month because of the death of his mother. (Tr. 62-63). Upon
returning to the United States, Barimah unsuccessfully began
searching for a new job. (Tr. 63). By May 1998, his left eye
retina had detached and he underwent surgery to correct it. (Tr.
64). Between July and September 1998, Barimah underwent three
additional left eye surgeries, which, in the long run, did not
improve his vision. (Tr. 66).

Starting in February 1999, Barimah's ophthalmologist, Dr.
Podhorzer, began to monitor Barimah's right eye for the possible
development of glaucoma because of a finding of a very deep optic
nerve cup. (Tr. 217-18, 273). Subsequent reports through June of
1999 indicated that the right eye retained normal vision.

At the hearing before the ALJ on August 25, 1999, Barimah
testified that he could not see anything out of his left eye and
that he felt pressure in his right eye. (Tr. 66-67). He asserted
that he could only read large numbers or print. However, he also
testified that he could read Reader's Digest or the New York
Times, although only for about five minutes at a time before his
vision blurred. (Tr. 67,70,72-74). He also stated that he tried
to read notwithstanding his alleged eye problems. (Tr. 71).
Barimah claimed that he had headaches on a regular basis for
which he took Tylenol and aspirin. (Tr. 81-82). In addition, he
testified that he experienced dizziness once or twice per week.
(Tr. 84-85). Barimah testified that since his 1998 surgeries, he
could not see anything with his left eye and that he had problems
with his right eye. (Tr. 66-67). Barimah also testified that
every time he uses prescribed eye drops they make him sleepy and
that therefore he must lie or sit down. (Tr. 70).

Tests conducted by Dr. Podhorzer on September 15, 1999 showed
"a significant decrease in parameters throughout the visual field
. . . for both eyes," and that Barimah's right eye vision with
correction was 20/50. (Tr. 273). On March 1, 2000, Barimah began
seeing a neuro-ophthalmologist, Dr. Essuman, who reported that
Barimah was partially blind in his right eye. (Tr. 279). The
condition evidently continued to worsen, and in April 2001, ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.